Publication
ATF 5300.4 in 27 CFR 479.102 (page 92) describes what is necessary to engrave on a SBR or SBS when one is manufacturing. This is not necessary if you purchase one that is already manufactured as it will have been done for you.
1) On the Frame or Receiver the Serial number;
Recently I was asked by one of the attorneys I work with about provisions for a will to deal with the NFA firearms that an individual owns outside of their trust. I wrote something on this topic which can be found on my Florida Estate Planning Lawyer Blog in an article How to deal with NFA and Non NFA Firearms in a Will
We are often approached by individuals who have formed trusts and want to know if they can upgrade the language in their trust to take advantage of the provisions in our NFA Firearms trust.
This can be done by amending and restating your existing trust and is a simple process. The process involves a review or your trust as well as an interview to determine what you are trying to accomplish, your family situation, and ways to reduce future taxes as well as legislative changes involved with the transfer of NFA firearms in the future. Once a plan is made, we simply amend your trust to our new trust and the changes become effective upon execution of the new documents.
If you have pending transfers it is possible to contact ATF and let them replace the document in your application and when it is approved it will be under the new trust document. The lawyers we work with do not charge any extra for this process if the review is done at the time when the new trust is ordered. If you just would like your trust reviewed, the typical cost is $150. If you later decide to upgrade your trust, $100 of the fee is waived, but if you determine you want to upgrade your trust from the beginning there is no additional fee over the cost of the trust.
Several of our attorneys are under the ARAG and / or Hyatt Legal plan and can offer NFA Gun Trusts for individuals who are under the plan. If you have ARAG you may qualify for a discounted and if you have Hyatt Legal Plans you may qualify for a Free or discounted Gun Trust. Your individual plan will describe your benefits. Not all states have a Gun Trust Lawyer® who participates with these plans,
The NFA Firearms Trust that we and our lawyers use is a copyrighted document. We have had several individuals ask us what this means in regards to its use.
When you purchase a NFA Gun Trust, you are permitted to make a copy of the trust for your own use and for submitting to the ATF. You are not permitted to copy the text and post it online, provide it to another individual for their use, or provide it to an attorney to copy to create trusts using our language. In addition, you are not permitted to remove our copyright notices from the documents and doing any of the above can result in civil damages for lost profits or statutory damages of up to $30,000 for each act of infringement. If a court determines that a violation is willful or intentional the liability increases up to $150,000 plus attorney’s fees under Title 17, United States Code Sections 504 and 505.The copyright covers the text of the trust as well as the instructions / memorandum.
Recently it has come to our attention that a lawyer is using our copyrighted text and incorporating our wording and protections into their own trusts. We take this very seriously and expect others to do the same.
NOTE: because of a recent law change the following information will be obsolete as of September 2011. Starting 8/28/2011 you will be able to use a NFA trust to purchase NFA firearms in Missouri without the need of a C & R, FFL, or use of a Corporation or LLC.
A trust may not obtain a C&R license. In some state like Missouri, to purchase Title II firearms you must have a FFL. Missouri considers a C&R a FFL for this purpose. A trust may not obtain a C&R or other FFL.
If you want to use a NFA Trust in Missouri, it must be done in conjunction with a Corporation or LLC. The Trust can be the member and the Manager of the LLC or Corporation which adds the ability to deal with incapacity, death, and easily changing the authorized users.
The ATF has recently made a decision to review Trusts for legal sufficiency. While this may slow things down for those using generic trust for NFA purchases (Quicken, Legal Zoom, Gun Store Trusts) I think its a good idea and will protect many from unknowingly violating the NFA.
We have seen several issues where the ATF is declaring trusts to be invalid that are in fact valid under various state laws. They claim they are not practicing law in those states and will not give legal advise. They suggest that you have the trust reviewed by a lawyer to tell you why it is invalid or make changes to the trust to make it valid.
If your trust was rejected by ATF we can help by reviewing and or amending the trust with our network of 75 attorneys in more than 40 states.
Today I received an email from someone who was forming a trust to transfer assets from their father’s estate. There were NFA items in the father’s estate. The person’s estate planning lawyer had advised them that it was OK to transfer NFA firearms to a trust using a general assignment of personal property. A general assignment of personal property is a standard form that transfers all personal property not requiring a deed or special documentation to a trust and is commonly used with a standard revocable living trust.
Unfortunately his lawyer must not have been familiar with the NFA because no one should ever do such a thing. This would be a violation of the National Firearms Act, and subject the individual to confiscation of all firearms, 10 years in jail for each violation, and up to a $250,000 penalty for each violation.
At this time of the year, we are often short of time and rushing to take care of things before the holidays. Before making a mistake with an NFA firearm, learn about them and the additional restrictions placed upon the use, possession, transfer, and purchase of them in your state and around the country.
NOTE The 5330.20 has been integrated into the Form 4 and Form 1 as of July 12, 2016 so this is no longer necessary.
While ATF has previously stated that a certification of compliance is not necessary for trusts, they have now changed their mind or at lease in some cases. For this reason we are now recommending that you send in the 5330.20 with your Form 4 or Form 1 application to purchase or make a firearm restricted under the NFA.
We will create a sample Form 5330.20 to review. Here is a link to download a Certification of Compliance with 18 U.S.C. 922(g)(5)(B) ATF 5330.20
NFA firearms and Constructive Possession. Some said it would never happen, but it seem that just recently Jesus Amador was arrested for possession / Constructive possession of an SBR.
Florida law does not allow individuals to possess the pieces to readily build an SBR, SBS, or Machine Gun unless permitted to do so under Federal law. While he may have been enticed by the police to take an action that he would not have taken, he eventually showed up to unknowingly sell the items to a police officer. Upon doing so 7 police officers at gun point slammed him to the ground and arrested him (as reported by Joshua Prince on his gun blog and by Mr Amador on Florida Gun Trader)
While some may say that this is a possession issue and not constructive possession, the fact is that constructive or actual possession are only ways to prove possession and as such there may be little significance between the two.
NFA Gun Trust Lawyer Blog